The Decibel - Are we ready for the new medically assisted dying law?

Episode Date: November 25, 2022

In March, Canada will expand medically assisted dying to people with mental illness as a sole condition. This will make the country’s euthanasia law one of the most liberal in the world – just seven years after assisted dying first became legal.A parliamentary committee has been hearing from experts since April about what needs to happen to make the right to die safe for all Canadians, and The Globe’s Erin Anderssen has been following the emotionally charged testimony.If you are having thoughts of suicide, call Kids Help Phone at 1-800-668-6868 or Crisis Service Canada at 1-833-456-4566, or visit crisisservicescanada.ca.Questions? Comments? Ideas? Email us at [e-mail]

Hi, I'm Maina Karaman-Wilms, and you're listening to The Decibel. Before we start, I want to let you know that today we're talking about medical assistance in dying and suicide. This coming March, the laws around medical assistance in dying, or MAID, are set to change. People will be able to access MAID with mental illness as a sole qualifying condition. And since last spring, doctors, patients and mental health advocates have been speaking at a parliamentary committee to figure out the best way to do this. It's an important question because I believe the Canadian populace and maybe even the legislators are not aware of who has been qualifying for MAID.

As a colleague so eloquently once stated, suicide implies some form of self-destruction. Assisted dying, a form of self-preservation. They're simply not the same. We struggle day to day. It doesn't mean that my needs should be met simply by being offered death. I am terrified as someone with mental health disabilities and physical disabilities to enter a doctor and to be offered MAID as a form of treatment when I already deal with suicidality. To me, it's not a choice that we have MAID or we have better resources. We need to be having better resources, period. But that's not a reason not to have MAID. Erin Anderson is a

feature writer at The Globe, and she's here to walk us through this life or death debate. This is The Decibel from The Globe and Mail. Erin, thank you so much for being here today. Thanks for having me. So let's just get a sense of where things stand. Can you tell me who can access assisted dying in Canada right now? Well, I would say a lot has happened since Canada's maid law was passed six years ago. In the beginning, it was only the people who had a reasonably foreseeable death

were eligible. So that would be kind of like the image people had was an elderly person with terminal cancer who, after talking to their doctor that they'd known for a long time, would have asked for MAID instead of facing a potentially painful death. That went on for a number of years. And in fact, it was largely true. Still, most of the cases something like two-thirds are cancer patients but then in 2019 a Quebec judge heard a case and ruled that it was unconstitutional that the MAID law did not also include people who did not have a foreseeable death and that suddenly opened the door to a much larger and also more complex group. The law

does create two significant differences between those two groups. In the track one group, you apply for MAID and you can receive an assisted death very quickly. In fact, the new law removed the 10-day waiting period. If you're a track two patient, you have to see a specialist and wait 90 days. And that has started a lot of debate around who's getting made, how far are we going to go with made. And those track two patients have certainly posed, I think, increasingly issues for doctors who are dealing with them. Yeah, it sounds like it's for sure. When you open it up like that, you introduce different issues that you have to work through alongside it. So that's where we are right now. And there are other changes coming to made in Canada starting early next year in March 2023. What

changes are we going to see then? So a really interesting thing happened to Bill C-7 as it was going through Parliament. What is Bill C-7? Bill C-7 is basically an amendment to Bill C-14, which was the bill that first legalized MAID at all in Canada. And so Bill C-7 was the next expansion of MAID. At the time that Bill C-7 was first introduced in the House, it included a restriction on mental illness. If you didn't have a foreseeable death, you could not apply as someone with a mental health condition as your sole reason for requesting MAID. But as Bill C-7 was going through the Senate, a senator introduced an amendment that included mental illness into Bill C-7, and that passed through both the Senate and the House. It came with one condition,

which was, they call it a sunset clause. So it gave Parliament two years to figure out how to do this safely. So it sounds like this is going to be a big change come March. And since last spring, as you said, a parliamentary committee has been hearing from doctors and advocates and other experts about MAID for patients with mental illness to figure out how this is going to roll out. What is actually being discussed here? So when I started researching the story for the Globe and Mail, I thought it was really important to go back and listen to the testimony that the parliamentary committee has been hearing about the MAID law. And they are, one of the issues they're looking at is this expansion into mental illness as a sole condition. So I basically binged

the committee hearing for a week, you know, hours of testimony. I read 350 briefs that have been submitted. And, you know, parliamentary committees aren't always the most fascinating thing to watch. But we cannot say that about this one. It was, to be honest, riveting, because it's until you watch that committee, you do not realize how deeply divided psychiatrists are about this issue, bioethicists. In some of those meetings, a doctor would come and say people are going to die because of this change who shouldn't die. And on the other hand, there would be a doctor testifying in the same hour who would say this is the best thing that we can do to show compassion, to recognize suffering, to see patients as whole people. And there's a large gap between those two positions,

and that's still not been resolved. What exactly are experts worried about with this change? The divide between doctors really comes down to an argument between patient autonomy and patient protection. So on the one hand, you have doctors who argue that people have a right to choose MAID, and it's not for somebody else to decide if they've suffered enough. It would be discriminatory, that side says, if you excluded MAID from people with mental illness just because they have a mental illness. On the other side, the psychiatrists point out that you're talking about patients who are marginalized, who are extremely vulnerable, who have not had access to resources. They will look

very different from the people who have been getting MAID in Canada so far, who largely are wealthier Canadians, are receiving MAID in their homes. So the question is, can you make a free choice to die, to accept MAID, if you haven't been given that same choice to live with dignity? Do we know who access is made for mental illness? You know, breakdowns on gender, on age? Do we have any idea of who's going, yeah, who's getting this treatment? So far, the Canadians receiving MAID have tended to be higher income. But people with severe mental illness tend to be poor, unemployed. They have problems such as housing. They tend to be socially isolated. And the concern is that that group of people will come to MAID already carrying a lot of

disadvantages. Here's Dr. Sanu Gain, who's a professor at the University of Toronto and former president of the Canadian Psychiatric Association. He's opposed to the MAID expansion and he testified at the parliamentary committee. Evidence shows that when death is foreseeable, people seek MAID to preserve dignity and autonomy to avoid a painful death. Those seeking MAID in these situations tend to be, in the researchers' words, white, more educated and more privileged. That's been used to suggest MAID is safe to expand to other situations. However, when expanded to the non-dying disabled for mental illness, that association completely flips. Then a different

group gets made, the group of non-dying marginalized who have never had autonomy to live a life with dignity. Rather than death with dignity, they're seeking an escape from life suffering, and they do overlap with those who are suicidal in the traditional sense. Evidence shows this group is more marginalized, has unresolved psychosocial suffering like loneliness and isolation, and a terrifying gender gap emerges of twice as many women as men receiving death to avoid life suffering. Yeah, I mean, that sounds like it is a major concern there then. So this is giving people the option of ending their life then, Aaron, but I guess what about the other side of this conversation then, making sure that people can access options to improve

their life, things like healthcare, things like therapy, all those things. What has the conversation been around improving our current mental health care system? I think one of the hopes that mental health groups have is that this whole conversation is really highlighting how poorly funded mental health care is in general, and how much the system is shattered and struggling now coming out of COVID. I mean, in the last few years, governments have been putting a lot more money into mental health, but we still spend significantly less as a proportion of our overall health care system. So mental health is in no way at parity with physical illness,

even though we increasingly come to understand more and more how much those two aspects of our lives are intertwined. One of the things the government introduced in August was a national suicide hotline, which was something that organizations had been asking for and sounds really good in principle. But now, of course, the question becomes, what happens when people call in? Where do they get sent when we know that waitlists are long, resources are short, doctors are burning out,

emergency rooms can't even stay open for their full hours? So that gets back to the underlying concern about expanding MAID at this particular moment in Canadian history, because the healthcare system is really at a breaking point that we have not seen before in really modern history. And I wonder too, because a lot of people need access to mental health services these days, in particular, because the last few years have been such a strain, right? We're talking about the pandemic, but also there's growing inflation. There's a looming recession. There's a lot of things that are taking its toll.

I wonder, Erin, how does all of that factor into this, too? Well, the fact is the pandemic has really only made the system worse. And we see that kind of happening all around us. Shortages at hospitals, emergency rooms that have been forced to close. We see growing lines for even basic treatment in mental health care. And we still don't have enough public funding for therapy, which is really one of the first-line treatments that people should be offered. I was really struck by this dramatic quote that came from Dr. Harvey Chachanov, who's a psychiatrist at the University of Manitoba, and he put it this way to the parliamentary committee. Now, if someone is standing on an open balcony in a high-rise

apartment, rapidly being engulfed in hot flames, is it reasonable to say that they have a choice whether or not to jump? Exercising autonomy means having real and viable options. If you're dying in the absence of quality and available palliative care, if you're disabled but don't have access to Yeah, that's a pretty dramatic quote there. help you grapple your way towards recovery, can we really say you're exercising an autonomous choice? Yeah, that's a pretty dramatic quote there. And that really actually spells it out pretty clearly, right? The choice that we're presenting people with. Yeah. And I think what's especially alarming about that is we're already seeing and hearing about cases like that in the media. People talking about not being able to get enough home care, considering made because their housing

doesn't accommodate their disability. Dr. John Marr is an Ontario psychiatrist who works with patients with severe mental illness such as schizophrenia, and he has been a very vocal opponent of the expansion. Here is part of his statement to the committee. Telling my patients that you will make it easier for them to die has enraged me. They will doctor shop to find the few psychiatrists who fancy themselves defenders of autonomy at all costs, and they will die because death was offered over full and purposeful membership in the human community. They will die because of the social suffering that this law enshrines. They will die because of lack of services. They will die because psychiatrists will now have

legal permission to give up. They will die because, whether you can see it or not, you have told them they don't matter. You have killed hope in Canada in the places it is needed most. It just gets back to this whole idea that if you solve somebody's living circumstances and their context, you might actually change their decision to ask for MAID. We'll be right back. So those are some of the reasons against expanding MAID in this way. But what about the arguments on the other side? What are experts saying in favor of MAID's expansion to include mental illness? The doctors who argue in favor of the

expansion also speak from a place of compassion. They want to relieve what they see as intolerable suffering. And for them, this is an argument of patient autonomy. Who are we? Who is society to judge another person's life if they have suffered enough? Who are we to say to people, well, we're sorry you can't get treatment because the lineup is so long, but we're also not going to give you the option of relieving the suffering, your suffering at the same time. Just go sit over here on the waiting list. Here is what Dr. Derek Smith, a BC psychiatrist and a MAID assessor, had to say about why people with mental illness should have access to MAID. But it's not whether the illness is incurable.

Some people would have us believe that we should hold on for years and years waiting for some new treatment to come down the line. What that's doing is prolonging the suffering of a person who is actively seeking their death to relieve intolerable suffering. So I don't think incurable is necessarily what we want to look at. We want to look at are there treatments available that are acceptable to the person who has been through 10 years of treatment that is going to improve their functioning? And if the answer to that is no, in other words, there are no treatments or there may be some treatments, but they're not acceptable to the patient, then they're, in my understanding of the law,

is that they are eligible for consideration for MAID. One of the points that Dr. Smith raised is that he didn't think that incurable is necessarily what we want to look at. Now, the law wants to look at that because under the definition, a person's condition must be grievous and irremediable. Now, it adds in there that any treatment must also be acceptable to the patient. So that's where patient autonomy comes in. But this whole idea of irremediability is a very divisive issue among psychiatrists. What the research shows is that most people who have a mental illness recover. But unlike cancer, where, say, a stage four tumor follows a pretty clear scientific path, how long you have had a mental illness and how severe your symptoms are don't necessarily

relate to the likelihood of your recovery. People who have been sick for a very long time find the right treatment and get better. The problem is that psychiatrists are not very good at figuring out which patients will get better. In fact, research shows that they are about as good as flipping a coin. And so psychiatrists who have raised the alarm about MAID have said, well, if we can't predict whether a patient will recover and we don't truly understand what mental illnesses are incurable, how can we legally define a condition as irremediable? And aren't we at risk of basically giving maid to people who will recover and might have decades of life left to live? And one of the emotional things that the committee heard from were people, people of lived experience who had been sick for a really long time and who had lost hope that they would get better and had very severe symptoms.

And this exact thing happened to them. They found the right care, the right doctors, the right treatment after years of searching. And they talked about their concern that if MAID had been available to them, would they be where they are today? Successful people, students, running organizations. One of the witnesses was a mayor. Now I have a rich life, recently elected as the mayor of my town, and my first grandchild will be born in a few weeks. To think that if in my darkest, most painful time I had been given the option of maid, I might have given up on a future that was better than I could have asked or even imagined. And so that is also a point from the lived community.

Wow. I mean, you can tell how difficult this issue is because both sides have really important points, right? And as you're saying, doctors on both sides are coming from places of compassion. It's difficult to bridge those gaps here. There was one expert witness who came forward at the end of October, and I think her testimony surprised a lot of people. Madeline Lee is a psychiatrist who works at the Princess Margaret Cancer Center. She's also a MAID assessor. She led the development of the MAID program at Toronto's University Health Network of Hospitals. And she also serves as a scientific lead for the new curriculum project that's being developed by the Canadian Association of MAID Assessors and Providers. Now that's a long title, but the reason why I mention it is because what

she said at the committee was not what you would expect perhaps from someone who is so heavily involved already in the MAID system. And what I'd like to tell you today is that I have significant concerns about the pace and process of the expanding MAID legislation. I'd like to begin by recognizing that practitioners all have values that sit on a continuum of whether they prioritize patient autonomy or the protection of vulnerable persons. I personally lean more towards the duty to protect, largely reflecting my belief that MAID for those with a reasonably foreseeable natural death is literally assistance in dying, while MAID for those without an RFND is technically assisting a suicide. Using the word suicide was certainly controversial in itself, but when I talked to Dr. Lee later,

she expressed her concern that MAID has become a euphemism that has made Canadians too comfortable with assisted dying. And in her testimony, she went on to talk about her concerns that the language around whether an illness or mental disorder is incurable was too vague. There was not enough oversight of cases currently happening. And that legislation is essentially leaving too much responsibility in the hands of clinicians who can then make their own value judgments over whether a patient is eligible. It was actually pretty dramatic testimony coming from a doctor with her expertise. And she was basically urging politicians to slow things down, to make sure that we have all the safeguards in place, and that when the law actually comes into effect, that patients are going to be safe. So what happens now?

Well, so now we're four months away. The parliamentary committee is still hearing testimony. They were supposed to submit their final report to Parliament in October. That's now delayed till February, which is just a few weeks before the law passes, how they will see, assess, will they provide MAID to patients. There's still no national standards for doctors to follow. The federally funding training for doctors won't be fully rolled out until the fall, so roughly six months after the law passes. There's a growing movement from psychiatrists, particularly to ask for a pause on the legislation so that there can be more time to build in the proper safeguards. There's no indication,

though, that that's what the government's thinking. The last letter that the health minister wrote to the committee basically set up the things that Health Canada was taking care of to reach March and essentially told the committee to get to work. So barring like a major shift on the part of the government, it's likely that on March 17th, 2023, MAID is going to become legal

for people with a mental illness as a sole condition. And we are going to start this very unique Canadian experiment. And only time is going to tell what happens after that. Erin, thank you so much for taking the time to speak with me today. This is a really important conversation. Thanks for having me. If you're having thoughts of suicide, you can call Kids Help Phone at 1-800-668-6868 or Crisis Services Canada at 1-833-456-4566.

Or you can visit crisisservicescanada.ca. That's it for today. I'm Mainika Raman-Wellams. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Kasia Mihailovic is our senior producer, and Angela Pichenza is our executive editor. Thanks so much for listening, and I'll talk to you next week.