A NOTE FROM ALLAN GOLD -I’m a lawyer Montreal, elder law attorney, passionate about the well-being of seniors. As you know, I’ve started a new series of articles on Elder law. On the subject of elderly mental health problems, I’m today addressing the topic of MAiD for sufferors of a mental disorder.
Gold’s Legal Minute*GLM* By Allan Gold lawyer Montreal and elder law attorney Vol. 14, #3 – May 17, 2023
Medical Assistance in Dying (MAiD) is a matter arising from human tragedy. It needs to be said that I have great empathy, sympathy and compassion for those wanting MAiD. I’m trying to understand what he/she is feeling. I’m also trying to feel what he/she is feeling. And I have the willingness to do whatever in order to relieve that person’s suffering. However, MAiD for Canadians with mental illness is as they say a bridge much too far! To these persons, we shouldn’t ask, “Can I help you kill yourself?” Instead we each must say, “I’m here for you!” Law is the manifest will of the people. It provides the community rules to live by. Freedom is good. But there are limits, aren’t there? MAiD poses a moral question for the public at large. And it’s an ethical minefield for health professionals. But at the end, this is an extremely difficult legal quandry. I have a plan. In essence, I want to put the genie back in the bottle. But before I explain how we might do so, let me first recount the long and twisted journey of how we got here.
I only have time and the space for an abbreviated version of the lead-up history. I’ll begin with the case of Rodriguez v. British Columbia (Attorney General),  3 SCR 519. A crucial issue was whether s. 241(b) of the Criminal Code infringes s. 7 of the Canadian Charter of Rights and Freedoms – the Charter (Part I of the Constitution Act, 1982). On Sept. 30, 1993, the Supreme Court of Canada rendered a judgment, denying a right to assisted suicide. (Sadly, slippery slope fears expressed in this case were warranted.) Next, I’ll refer to the controversial case of R v Latimer,  1 SCR 3. Robert Latimer was a Saskatchewan farmer convicted of murdering Tracy, his 12-year old daughter. She suffered from cerebral palsy which rendered her immobile and unable to speak, with the mental capacity of an infant. He claimed it to be a ‘mercy killing.’ In its decision, the Supreme Court ruled that the crime could not be justified through the defence of necessity. Robert Latimer served seven years in prison for killing his disabled daughter. On June 5, 2014, Quebec enacted the so-called “right-to-die” law. Bill 52, an Act respecting end-of-life care, passed in a free vote in the National Assembly by 94 votes to 22. Quebec thusly became the first Canadian province to legalize medically assisted death. In 2015 came the turning point in accepted law on point. Such was the case of Carter v Canada (AG), 2015 SCC 5. In the unanimous decision of Feb. 6, 2015, the Supreme Court struck down the provision in the Criminal Code, thereby giving Canadian adults who are MENTALLY COMPETENT and suffering intolerably and enduringly the right to a doctor’s assistance in dying. On May 30, 2016, the Canadian Parliament passed Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). Its acronym is MAiD. Kindly note that MAiD commenced by covering terminal illnesses. In May 2017, Ontario’s Medical Assistance in Dying Statute Law Amendment Act, received Royal Assent and came into force. And then came the case of Truchon v Canada (AG), 2019 QCCS 3792. On Sept. 11, 2019, the Superior Court of Québec declared unconstitutional the “reasonable foreseeability of natural death” (RFND) eligibility criterion contained in the federal MAiD legislation, and the “end of life” eligibility criterion contained in Quebec’s Act Respecting End-of-Life Care. The Court ruled that the RFND criterion did violate section 7 of the Charter, which protects against deprivations of life, liberty and security of the person, and section 15 of the Charter, which guarantees the right to the equal protection and equal benefit of the law without discrimination. There was no appeal. On March 17, 2021, Parliament passed former Bill C-7 to revise eligibility criteria for obtaining MAiD and the process of assessment. The bill amended the Code provisions on MAiD by establishing a separate set of screening factors for individuals whose natural death is not reasonably foreseeable, etc. It must be noted that MAiD was set to allow, starting on March 17, 2023, anyone suffering from a mental illness, meeting eligibility criteria to be eligible for medical assistance in dying. However, on Feb. 2, 2023, the Liberal government introduced Bill C-39. Such was an Act to amend the Criminal Code (medical assistance in dying). This was relative to Subsection 1(2.1) of Section 6 of An Act to amend the Criminal Code (medical assistance in dying). It was to postpone said start date until March 17, 2024. In other words, this was to delay the expansion of MAiD to people suffering from a mental illness – read someone whose sole underlying condition is a mental disorder. And then on Feb. 10, 2023 Conservative MP Ed Fast (Abbotsford, BC) tabled (for first reading) Bill C-314. The Bill’s summary reads as follows. “This enactment amends the Criminal Code to provide that a mental disorder is not a grievous and irremediable medical condition for which a person could receive medical assistance in dying.”
So there you have it. With MAiD, I believe that Canada is slipping and sliding down the proverbial ‘slippery slope.’ As per Merriam-Webster, that phrase means “a course of action that seems to lead inevitably from one action or result to another with unintended consequences” 1 While our Jurists, Parliamentarians & Legislators were well-intentioned, Canada has gone down the Carter rabbit hole. One thing led to another. Someone wanted a little more. Seemingly pushed into a box, highly-principled people had to go just a little farther. Of course, that encourages someone else. I’m left asking, “Are we there yet?” I must respond, “I don`t think so. Things will likely continue as nothing seems to be holding us back.” However, it’s accurate to say that there’s great controversy over the expansion of MAiD. In all fairness, it also must be said that it’s not all the fault of the Liberal government. The Courts have forced its hand. Clearly, the government is uncomfortable with the expansion and so to speak, it’s kicking the can down the road. For Canada to navigate out of this legal cul-de-sac, it’s certainly going to take a clear understanding of the issues and also the political will to get us where we should be.
“Mental health…is not a destination, but a process. It’s about how you drive, not where you’re going.” — Noam Shpancer, PhD 2
I SUPPORT MR. FAST’S BILL C-314.
Ouch, following this descent from the Rodriguez case, Canada is left legally scratched and scraped. Some of us like Mr. Fast want to stop us from falling further. I applaud his initiative. As to my reasons for supporting Mr. Fast, permit me a moment to explain further.
Here’s an extract of the Bill: “Whereas Parliament considers it a priority to ensure that adequate supports are in place for the mental health of Canadians; Whereas Parliament considers that vulnerable Canadians should receive suicide prevention counselling rather than access medical assistance in dying; Whereas Parliament considers that Canada’s medical assistance in dying regime risks normalizing assisted dying as a solution for those suffering from a mental disorder; Now, therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. 46 Criminal Code Subsection 241.2(2.1) of the Criminal Code is replaced by the 1 following: Exclusion For the purposes of Insertion start subsection (2) Insertion end (2.1), a mental Insertion start disorder Insertion end is not Insertion start a grievous and irremediable medical condition Insertion end.” 3 Personally, I can’t argue with that. Can you?
Respect for Life.
I’m a person who believes in the religious principle of sanctity of life. I’m also someone who embraces the credo of respect for life. Hence, I’m deeply troubled over where we’ve arrived. My God, there’s been a steady drip, drip, drip erosion of our high ideals about life. We’ve seemed to have arrived at a place where I no longer recognize the legal boundaries. For Heaven’s sake, let’s make this right!
With MAiD, We’re Looking for Trouble.
With this proposed expansion of MAiD, in my perspective, we’re looking for trouble and we’ve already found it. As an example, CBC reported on Nov. 24, 2022 that “Four — perhaps even five — Canadian military veterans were given the option of medically-assisted death (MAID) by a now-suspended Veterans Affairs Canada caseworker, the country’s veterans minister told a House of Commons committee late Thursday.” 4 There was a final report of an expert panel which was released in May. It said “the expansion of MAID raises additional challenges involving those who are elderly, have neurodevelopmental or intellectual disabilities and people who are in prison, where the prevalence of mental disorders is high compared with the general population.” 5
Update: In his column of Apr. 4, 2023 , titled “WATCH: Pro-life group urges Canadians to support excluding mental illnesses from MaiD,” 6 Jonathan Bradley wrote about David Cook campaigns manager of Campaign Life Coalition (CLC). Cook thinks that people with mental illnesses need help and support. He believes that they need others to be present with “suicide prevention, not suicide provision.” Cook wants Bill C-314 to pass into law. And he encouraged Canadians to tell their MPs that medical assistance in dying (MAiD) should not be expanded to mental disorders. (N.B. Whilst I may not generally support the positions of this organization, I cannot argue against the logic of its reasoning with regard to the exclusion of mental illnesses from MAiD.)
What follows isn’t the technical argument. But rather, it’s the enumeration of several points that I believe should be made.
#1 “Non compos mentis.”
Today, we’re faced with MAiD being extended for those whose sole underlying medical condition is a mental illness. However, there’s a notion of “Compos mentis.” That’s “Latin for “having control/mastery of one’s mind.” The term is used to describe individuals who are of sound mind; those who are mentally competent and capable of managing their own affairs; those who have use of and control over their mental faculties. The opposite term is non compos mentis.” 7 This said, consider if you will, several definitions: * “Mental disorder” – Such is “characterized by a clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour. It is usually associated with distress or impairment in important areas of functioning. There are many different types of mental disorders. Mental disorders may also be referred to as mental health conditions. The latter is a broader term covering mental disorders, psychosocial disabilities and (other) mental states associated with significant distress, impairment in functioning, or risk of self-harm. This fact sheet focuses on mental disorders as described by the International Classification of Diseases 11th Revision (ICD-11).” 8 * “Mental illnesses” According to Government of Canada, such “are characterized by alterations in thinking, mood or behaviour associated with significant distress and impaired functioning.” 9 Insofar as I’m concerned, it`s reasonable to say that people suffering from mental-disorders or having a mental illness are less likely of being in sound mind – instead, they’re quite possibly in a state of “non compos mentis.”
#2 Criminal Code.
On the books, we still have the criminal prohibitions of culpable homicide (S. 222 (1)). And there’s S. 241 (1) which provides, “Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not, (a) counsels a person to die by suicide or abets a person in dying by suicide; or. (b) aids a person to die by suicide.”
#3 Carter: Strictly Exceptional Permission.
It needs to be said that in the landmark Carter case (Carter v Canada (AG), 2015 SCC 5), the Supreme Court EXCEPTIONALLY permitted access to physician-assisted death—euthanasia—on certain very specific conditions. And the women at the centre of the battle were Kay Carter, who suffered from degenerative spinal stenosis and Gloria Taylor, suffering from amyotrophic lateral sclerosis (ALS). Furthermore, the High Court specified that its ruling was “intended to respond to the factual circumstances in this case.” Indeed at paragraph 111 of the judgment, the Court stated that assistance in dying in other situations, such as for “minors or persons with psychiatric disorders or minor medical conditions” was not to fall within the criterion suggested in its reasons. In no way therefore, can it be said that the High Court would condone MAiD being made available to those solely afflicted with a mental illness!
#4 Informed Consent.
When it comes to medical care, there’s a fundamental principle of “Informed Consent.” In its “Standard of Practice,” the College of Physicians & Surgeons states: “..1. A regulated member must obtain a patient’s informed consent prior to an examination, assessment, treatment or procedure; such consent may be implied, expressed orally or in writing as appropriate. … 3.If an adult patient lacks capacity to give informed consent, a regulated member must seek informed consent from the patient’s legal guardian or substitute decision maker, in accordance with legislation.” 10 As per Dr. Margaret Somerville (internationally known ethicist), “The person must be mentally competent and must provide informed consent up to and including the point at which euthanasia is administered. …This requirement acts as a protection for vulnerable, incompetent people, (for example those with dementias, such as Alzheimer’s disease)” 11 As a result, the critical qualification of a patient is to have mental capacity. And that is a fundamental primordial concept underpinning medical care in our country. In my opinion therefore, making MAiD available to sufferors of mental illness flies in the face of such parameters. Personally, it’s so against the grain – it’s just like putting a square peg in a round hole!
#5 Some Positives in Quebec Legislative Landscape.
In Quebec, we have several statutory pillars where we can find support for our position. Here are several examples.
-Art. 258 of the Civil Code of Québec (chapter CCQ-1991). This provision provides: “A tutor is appointed to represent a person of full age who is incapable of caring for himself or herself or of administering property by reason, in particular, of illness, deficiency or debility due to age which impairs the person’s mental faculties or physical ability to express his or her will….”
-“Good Samaritan” laws about helping people in danger. The law requires a (physical) person to come to the aid of someone whose life is in danger. In support, I refer to Art. 2 of Charter of human rights and freedoms (C-12 ), which states: “2. Every human being whose life is in peril has a right to assistance. Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason. 1975, c. 6, s. 2′ In addition, there’s Art. 1457 of the Civil Code of Québec (chapter CCQ-1991), which states: “ Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. …”
-Art. 48 of Charter of human rights and freedoms (C-12 ). This article provides: “Every aged person and every handicapped person has a right to protection against any form of exploitation. Such a person also has a right to the protection and security that must be provided to him by his family or the persons acting in their stead. 1975, c. 6, s. 48; 1978, c. 7, s. 113.”
Accordingly, I ask, “How does the expansion of MAiD square with these positive obligations bearing upon Quebecers.
The Hippocratic Oath Medical doctors subscribe to the principles of traditional medical ethics of Hippocrates. In a nutshell, such are “beneficence, non-maleficence, justice and respect for the patient’s autonomy with its two rules of confidentiality and veracity.” As per Dr. Margaret Somerville (internationally known ethicist), “Assisted suicide and euthanasia are not medical treatment.” Nevertheless, we currently have a physician administering a substance to a person, at his/her request, that causes death. Having doctors involved doesn’t make sense to me. But more, if suicide is the action of killing oneself deliberately and if that person hasn’t done it, that speaks volumes. In such an instance, I must ask, “Can it be said that “medical assistance in dying” is then just a high falutin way of saying suicide by doctor?”
“And still, I rise.” — Maya Angelou 2
I’m deeply distressed about how things could go so very wrong. I’m of the opinion, that we’ve gone down a wrong road. And we’re still on a downward progression on that bumpy terrain to nowhere good. For me, the only way to stop the drive for more and more is to go back to square one. Speaking plainly, I propose that we address this issue head on with a new court challenge. The Quebec National Assembly might have been the first off the mark, but the trial judge in the Carter case found that the prohibition against physician-assisted dying did violate the s. 7 rights of competent adults who are suffering …” And the Supreme Court found for plaintiffs in Carter. It can be said that the Carter precedent opened the floodgates. But I submit that this is an instance where our highest court didn’t hang their hat on an express right but rather, inferred the right to a doctor’s assistance in dying from other rights that are implied by existing law. Furthermore, the High Court raised the window ever so slightly. It was the other courts which jarred it open much wider. Finally, I note that the Supreme Court in Carter found that the trial judge was not bound by the Supreme Court’s 1993 Rodriguez decision – indeed, the Justices wrote:
“ The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII),  3 S.C.R. 1101, at para. 42).”
Accordingly, the Supreme Court stated that a court could overrule itself. Indeed, it did just that to Rodriguez with Carter. For all the reasons inclusive of current circumstances, I believe that the legal foundation of MAiD is flawed. I therefore submit that the Supreme Court could overrule Carter. Accordingly, I urge that the way out of our current legal quagmire is to bring a new case. I believe that in the right circumstances, the Supreme Court would be open to overturning the “settled law” represented by Carter, thusly returning Canada to the right road. I assert that the Court might go back to its rationale as stated in Rodriguez. Hon. Mr. Justice Sopinka (joined by La Forest, Gonthier, Iacobucci and Major JJ) wrote,
“The appellant’s claim under s. 7 of the Charter is based on an alleged violation of her liberty and security of the person interests. These interests cannot be divorced from the sanctity of life, which is the third value protected by s. 7. Even when death appears imminent, seeking to control the manner and timing of one’s death constitutes a conscious choice of death over life. It follows that life as a value is also engaged in the present case. Appellant’s security of the person interest must be considered in light of the other values mentioned in s. 7. … “The expression “principles of fundamental justice” in s. 7 of the Charter implies that there is some consensus that these principles are vital or fundamental to our societal notion of justice. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also be legal principles. To discern the principles of fundamental justice governing a particular case, it is helpful to review the common law and the legislative history of the offence in question and, in particular, the rationale behind the practice itself (here, the continued criminalization of assisted suicide) and the principles which underlie it. It is also appropriate to consider the state interest. Fundamental justice requires that a fair balance be struck between the interests of the state and those of the individual. The respect for human dignity, while one of the underlying principles upon which our society is based, is not a principle of fundamental justice within the meaning of s. 7. … As well, s. 241(b) of the Code does not infringe s. 12 of the Charter. The appellant is not subjected by the state to any form of cruel and unusual treatment or punishment. Even assuming that “treatment” within the meaning of s. 12 may include that imposed by the state in contexts other than penal or quasi penal, a mere prohibition by the state on certain action cannot constitute “treatment” under s. 12. There must be some more active state process in operation, involving an exercise of state control over the individual, whether it be positive action, inaction or prohibition. To hold that the criminal prohibition in s. 241(b), without the appellant being in any way subject to the state administrative or justice system, falls within the bounds of s. 12 would stretch the ordinary meaning of being “subjected to . . . treatment” by the state.
I know I’m a contrarian bucking the current trend. While I have the utmost respect for those people of integrity and conscience having the opposite view, the MAiD pathway doesn’t feel right for me. It’s not what appears best for the greater or common good and also those amongst us in need of care. Instead, to alleviate pain and suffering, let’s improve the health network, sponsor more health initiatives and provide more people in need with greater access to the treatment which they require. And let’s put piles of money in medical research and palliative care. In my humble belief, that’s what feels right! It pains me to say that there’s only one way to go . . .back to the thinking in the majority opinion in the Rodriguez case. Just a word of caution, it won’t be easy, especially, taking into account the legislation enacted subsequent to Carter. In this new test case, I see the crafting of a successful legal argument as threading a needle. And we will have to find harmony and strike a balance between conflicting forces, interests, etc.
Allan J. Gold www.allanjgold.com
P.S. Here’s something to think about:”If you’re going through hell, keep going.” ― Winston Churchill 12
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NOTICE – CAUTION –DISCLAIMER. The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of, or a substitution for, legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.
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