Exclusion of mental health as grounds for assisted death is likely temporary: Lametti

OTTAWA — The federal government’s bill to expand eligibility for medical assistance in dying appears to be in for a rough ride in the Senate.

Justice Minister David Lametti was grilled about Bill C-7 Monday by members of the Senate’s legal and constitutional affairs committee, which has launched a pre-study of the bill before it is passed by the House of Commons.

Several senators challenged Lametti on why the bill expressly prohibits people suffering solely from mental illnesses from seeking medical assistance to end their lives. 

They argued that the exclusion is unconstitutional and predicted it will wind up being struck down by the courts.

“I believe that what you’re putting forward with this bill will ultimately be invalidated by the courts,” said Conservative Sen. Claude Carignan. 

The government is putting a “huge burden” on people suffering intolerably from mental illnesses, forcing them to fight for their right to assisted dying in court, Carignan added.

Another Conservative senator, Pierre-Hugues Boisvenu, echoed that prediction. And he reminded Lametti that senators tried to warn the government in 2016, when it first legalized assisted dying, that the law would be struck down because it restricted the procedure only to those whose natural death was reasonably foreseeable.

The Senate voted to amend the original bill to scrap the near-death proviso but the government rejected the amendment and senators ultimately acquiesced to the will of the elected House of Commons.

As some senators had predicted, the near-death requirement was struck down last fall by the Quebec Superior Court. Bill C-7 is meant to bring the law into compliance with that ruling.

The bill would scrap reasonably foreseeable death as a requirement for an assisted death. It would retain the concept to set out easier eligibility rules for those who are near death and more stringent rules for those who aren’t. 

Sen. Pierre Dalphond, a former Quebec Court of Appeal judge who is a member of the Progressive Senate Group, told Lametti that he believes the exclusion of those suffering solely from mental illnesses is a violation of Section 15 of the Charter of Rights and Freedoms, which guarantees equal treatment under the law, regardless of physical or mental disability.

Moreover, he said the blanket exclusion of one group of people flies in the face of the Supreme Court, which has been clear that eligibility for an assisted death must be assessed on a case-by-case basis.

Lametti countered that he believes the exclusion is very narrow and would stand up to a charter challenge because it is necessary to protect the vulnerable.

The issue is complicated, he argued, because there is no consensus among experts on whether it is ever safe to allow assisted dying for people suffering solely from mental illness. The trajectory of mental illnesses is more uncertain than that of physical illnesses, he said, and suicidal thoughts are often a symptom of mental illness.

Such questions deserve more in-depth consideration but there is no time to do so now, Lametti said, because the government is rushing to meet a court-imposed deadline of Dec. 18 to amend the law.

He said the issue can be more properly considered as part of a legally mandated parliamentary review of the assisted-dying law, which was to have begun in June but has not yet materialized.

“This exception is very narrow and hopefully temporary,” he told the committee.

But Lametti could give senators no assurance that the parliamentary review, which is also supposed to study the issues of advance consent and whether mature minors should have access to assisted dying, will begin any time soon. He said he’d personally like it to start “tomorrow” but he has to convince his fellow cabinet ministers on the timing.

The committee also heard Monday from the Canadian Psychiatric Association, which has said the exclusion of those with mental illnesses is discriminatory and stigmatizing.

Several other senators raised other objections to the bill, including the fact that it would require individuals who are not near death to clear extra hurdles before being able to receive an assisted death.

Those safeguards were added specifically to address the concerns of disability rights groups, some of which testified later Monday at the committee and made clear that they are not satisfied.

“Why us?” Krista Carr, executive vice-president of Inclusion Canada.

“As no other charter-protected Canadian life is being put at risk by this bill, there is only one answer to this question: The lives of Canadians with disabilities are not of equal value.”

Conservative Senate leader Don Plett urged Lametti to amend the bill to ensure that medical practitioners who have moral objections to assisted dying don’t have to refer patients to someone who will provide the procedure.

Lametti said he’s “generally inclined to say no” to that suggestion, contending that setting rules for doctors in the delivery of health-care services is a provincial responsibility.

This report by The Canadian Press was first published Nov. 23, 2020 

Joan Bryden and Stephanie Levitz, The Canadian Press