Jocelyn Downie clarifies what the Supreme Court of Canada’s Carter decision actually says (and doesn’t say) about advance requests for MAiD and MAiD for psychiatric illness.
When should individuals be allowed to make an advance request that medical assistance in dying (MAiD) be performed after they have lost their decision-making capacity? Should individuals with mental disorders be permitted to access MAiD? A Special Joint Committee of the House and Senate is currently reviewing the Criminal Code provisions relating to these and other issues. This is an important task, and the committee deserves to be given, and must ground its recommendations in, an accurate understanding of the facts. Unfortunately, it is being misled about what the Supreme Court of Canada (SCC) said in Carter, the landmark 2015 MAiD case that declared the Criminal Code’s prohibition of MAiD unconstitutional. What did the SCC actually say about consent (relevant to the advance requests issue) and psychiatric illness (relevant to the MAiD for mental illness issue)?
Speaking about consent, committee member Michael Cooper said the following in posing a question to a witness: “Dr. Pageau, the Supreme Court of Canada stated unequivocally three times in Carter that medical assistance in dying may be performed only when a patient clearly consents. You spoke about advance directives. In the face of the pronouncement of the Supreme Court, do you believe that an advance directive can be a true expression of free and informed consent consistent with Carter?” At least two witnesses at later meetings made a similar claim.
But it is simply not true. The SCC stated in paragraph 127 of Carter that “s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life.” In other words, the SCC said “the law cannot prohibit MAiD where x, y, and z.” Mr. Cooper erroneously claims the SCC said “the law must require x for MAiD.” (x = clear consent at the time of the provision of MAiD.) But the SCC stated only that prohibiting MAiD is void if it prohibits access for someone who, at the time of the provision of MAiD, clearly consents to it. That is not at all the same thing as saying that MAiD is permitted only when a person clearly consents to it at the time of provision. That would be like saying “the law cannot prohibit gay marriage” is the same thing as saying “only gay people can get married.” As the committee wrestles with what recommendations to make about advance requests for MAiD, they must know that permitting advance requests can absolutely be consistent with Carter.
When MAiD for mental illness reaches the Special Joint Committee’s agenda, witnesses are likely to say, similarly, that the SCC excluded psychiatric illness from eligibility for MAiD. Now, one might be forgiven for saying this if one looked at only the text of the SCC decision. The text is arguably confusing. However, the meaning of the SCC decision has been clarified in two subsequent court decisions (Canada (Attorney General) v E.F., and the Truchon decision), both of which held (and explained) that Carter does not exclude psychiatric illness from eligibility for MAiD. No exclusion can be found in the text. Nor can it be read in. From Canada (Attorney General) v E.F.:
 As can be seen, in Carter 2015 the issue of whether psychiatric conditions should be excluded from the declaration of invalidity was squarely before the court; nevertheless the court declined to make such an express exclusion as part of its carefully crafted criteria. Our task, and that of the motions judge, is not to re-litigate those issues, but to apply the criteria set out by the Supreme Court to the individual circumstances of the applicant. The criteria in paragraph 127 and the safeguards built into them are the result of the court’s careful balancing of important societal interests with a view to the Charter protections we all enjoy. Persons with a psychiatric illness are not explicitly or inferentially excluded if they fit the criteria.
 Last, it bears repeating that neither Carter nor the federal legislation excludes people with a psychiatric condition from requesting and being granted medical assistance in dying like any other Canadian who meets the legislative requirements. These people are, therefore, eligible, regardless of their official diagnosis, once they are deemed competent by two independent physicians and meet the other legal requirements.
Neither of these decisions was appealed, and the Attorney General of Canada even took the unusual step of explaining his decision not to appeal the Truchon decision in the House of Commons:
[T]he simple fact of the matter is this: Had we appealed the decision through the court of appeal, or possibly the Supreme Court of Canada, so many more Canadians would have had to suffer for so much longer. It is that simple. That would be on a case in which we strongly believed legally we would lose on its constitutionality. The reasoning of the Quebec Superior Court was compelling and it will ultimately be upheld. Why make people suffer in the meantime?
At the very least, the committee needs to know that, and why, courts in two provinces and the Attorney General of Canada have rejected the claim that Carter excluded psychiatric illness from eligibility for MAiD.
It’s hard enough to decide what recommendations to make about MAiD for mental illness and advance requests for MAiD. Witnesses and committee members shouldn’t make the Special Joint Committee’s task even more difficult by allowing or spreading misinformation about what guidance relevant to these matters the Supreme Court of Canada has already given.
Jocelyn Downie is a University Research Professor in the Faculties of Law and Medicine at Dalhousie University. @jgdownie