Jocelyn Downie summarizes the federal Special Joint Committee’s report as it relates to medical assistance in dying for mental disorders as the sole underlying medical condition, and raises concerns about the politically partisan nature of the dissenting opinions.

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The Special Joint Committee on Medical Assistance in Dying recently released its final Report. This Report includes the results of deliberations on the issue of medical assistance in dying for persons with a mental disorder as their sole underlying medical condition (MAiD MD-SUMC).

With the release of its Report, the Special Joint Committee became the latest in a long line of committees and expert panels to weigh in on the issue of MAiD MD-SUMC. Each of the official committees or panels tasked with making recommendations has recommended against the exclusion of persons with mental disorders (i.e., on the basis of a diagnosis of mental disorder).

Photo Credit: peapix. Image Description: Parliament Building in Ottawa.

Prior to the Committee beginning its work, three court cases considered the issue: Carter, EF, and Truchon. Each of these cases heard evidence on MAiD for persons with mental disorders and the decisions did not exclude people with MD-SUMC from eligibility for MAiD (indeed, in EF the Alberta Court of Appeal granted a constitutional exemption to a woman with MD-SUMC so that she could get access).

In short, the Special Joint Committee entered a field occupied by hundreds of hours of testimony by experts and people with lived experience. Thousands of pages of written briefs. Thousands of hours of deliberation. Thousands of pages of written reports and court decisions. And a common conclusion: do not exclude from eligibility for MAiD people with MD-SUMC.

On top of this foundation, the Special Joint Committee added further evidence and arguments, and yet more hours of testimony and deliberation. With respect to MD-SUMC, the Committee summarized the evidence it heard about:

• assessing capacity in the context of a mental disorder, “including identifying whether someone is in crisis;”
• challenges to assessing irremediability;
• distinguishing MAID requests from suicide;
• structural vulnerability and “possible implications for MAID;”
• “safeguards, standards and practical considerations [for MAiD MD-SUMC]”; and
• whether it is discrimination to exclude MD-SUMC from eligibility for MAiD

The majority of the Committee concluded that: “While the committee respects that some witnesses do not think that individuals whose sole underlying medical condition is a mental disorder should be eligible for MAID, the committee believes that such individuals should have access to MAID, provided that they meet the eligibility requirements.” (emphasis added)

Furthermore, the majority of the Committee expressed support for the government’s requested (since passed) one-year delay in the removal of the current eligibility exclusion for MAiD MD-SUMC. It indicated that readiness was tied to the development of standards of practice for physicians and nurse practitioners, the development of training materials for health care practitioners, and better consultation with Indigenous Peoples and communities. It also recommended that a Special Joint Committee on Medical Assistance in Dying be re-established five months prior to the end of the delay, in order to verify the degree of preparedness attained for a safe and adequate application of MAiD MD-SUMC.

The Special Joint Committee Report could signal the end of the fight about what the law should be for MAiD MD-SUMC. As a Model Practice Standard will be released soon, a National Curriculum will be launched, and more robust consultations with Indigenous Peoples and communities are being pursued, nothing in the majority report stands in the way of the exclusion of MAiD MD-SUMC being lifted on March 17, 2024.

Unfortunately, the Report could instead signal the beginning of a new phase of the fight. The debate about MAiD MD-SUMC has, until now, been highly polarized but it has not, to date, been egregiously partisan. With the release of the dissenting report, that has changed. What is noteworthy about the dissenting report is not the introduction of any new evidence or arguments or even its conclusions (supporting the exclusion of MAiD MD-SUMC). Rather, what is noteworthy – indeed startling – is the extent to which it is a partisan diatribe filled with hyperbolic rhetoric.

The dissenters gave their report a partisan name in addition to (and above) the usual name for a dissenting report. While they did include “Special Joint Committee on Medical Assistance in Dying: Dissenting Report,” they preceded that with “The Liberal Government’s Failures Respecting Medical Assistance in Dying: A Call for Caution Against Repeating Past Mistakes.”

In the Table of Contents, the dissent is called “The Dissenting Opinion of the Conservative Party of Canada”.

The partisan nature of the dissenting report (signalled in the table of contents and title) is intensified through its hyperbolic targeting of the Liberals. It uses the word “Liberal” 28 times in a ten-page report. It begins with the phrase “[a]fter eight years of growing poverty and desperation under Justin Trudeau” and continues with such phrases as “Liberals [sic] shambolic approach;” “incompetent and reckless report of the Liberals on this issue;” and “[l]ike much of what Justin Trudeau says, these were empty words.” This tone is more suited to an election campaign than a report from even a dissenting group of members of a Special Joint Committee of the House and Senate.

In the end, the dissenting report might be “full of sound and fury, signifying nothing.” Perhaps the majority recommendations will be followed and we will have a smooth transition to MAiD MD-SUMC becoming available on March 17, 2024. But it is also possible that the legacy of the Special Joint Committee Report will be the devolution of the MAiD debate into partisan battles. Time will tell.

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Jocelyn Downie is a Professor in the Faculties of Law and Medicine at Dalhousie University. @jgdownie