Dylan McKibbon suggests that discussions about medical assistance in dying must consider the unique circumstances of prisoners, and that a model of Therapeutic Jurisprudence can help address some of the concerns related to MAiD in the context of incarceration.

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There has been much discussion regarding medical assistance in dying (MAiD) in Canada. Because persons suffering solely from a mental illness and who meet all other eligibility criteria will be able to receive MAiD after March 17, 2024, thoughtful consideration should be afforded to how this decision impacts prison populations and, by extension, the clinicians who service these populations.

The model of justice most widely deployed in Canada is that of retributive justice, which is based primarily on punishment rather than rehabilitation. MAiD in this context seems paradoxical, given that MAiD is widely regarded as an action of mercy or kindness (though this is also a point of contention). MAiD therefore seems antithetical to the spirit of this prevailing model of justice.

Photo Credit: Jamie McCaffrey/flickr. Image Description: The statue Ivstitia (Justice) looks outward from the Supreme Court of Canada, with the Peace Tower in the near distance.

Incarceration can contribute to the prevalence of mental health illness, and some researchers are now voicing concern since a growing number of inmates are aging, putting them at risk of cancer and other diseases that might qualify them for MAiD. Reports from Correctional Services Canada(CSC) indicate that disproportionate incarceration persists for those who have a current mental health diagnosis, while other studies show prison life itself can worsen mental health altogether. Through a comprehensive literature review conducted by the Mental Health Commission of Canada, it was discovered that 40% of people with mental illness have been arrested in their lifetime.

In Canada, 1,807,250 people identified themselves as Indigenous in the 2021 Census, accounting for 5% of the country’s total population. Canada’s total prison population numbers 32,261 individuals, and although Black prisoners represent only 3.5% of Canada’s population, they constitute 9.2% of the total incarcerated population. Taken together, these two populations (representing only 8.5% of Canada’s total population) comprise a staggering 41.2% of the prison population. Dr. Ivan Zinger, who led a landmark report in 2013 by the Office of the Correctional Investigator, revealed that five out of six prisoners who died by suicide in 2021 were Indigenous.

These statistics raise serious health equity concerns in relation to MAiD in prison. They prompt us to confront the truth about who will be accessing MAiD. In March, access may include, for example, individuals who have experienced systemic and generational trauma which then functioned as a progenitor of mental illness, which increased the risk for incarceration, which exacerbates mental health illness, which qualifies them for MAiD.

We should take steps to reduce the likelihood that incarceration will produce or worsen mental illnesses by moving away from the retributive model of justice. Perhaps a good place to begin is with the notion of Therapeutic Jurisprudence, which is the study of the role of the law as a therapeutic agent to affect its consequences for the betterment of our society.

The challenge of Therapeutic Jurisprudence is to determine whether the antitherapeutic effects of these consequences can be reduced, and their therapeutic effects enhanced, without subordinating due process and other values of justice.  Norway’s prison system, renowned as one of the most effective and humane in the world, is an excellent example. Norway implements a system of small, community-based correctional facilities focused on rehabilitation and reintegration into society rather than large, centralized jails. Incarcerated individuals are geographically close to their homes and maintain relationships with spouses, friends, and family – but what really makes this model work is that it has widespread support from Norway’s citizens, who believe deeply that the goal of prison should be to help prisoners succeed after release.

Seen through the lens of Therapeutic Jurisprudence, antitherapeutic effects in such a system can be reduced because the community ties and informal care networks that those prisoners depend upon are maintained. Though they have been stripped of their liberty, the administration of justice is conducted in a manner that preserves their humanity and dignity, which would be conducive to the mental health of prisoners. This model builds a pathway toward rehabilitation rather than sustaining the conditions which generate or worsen illnesses that provide for access to MAiD under the new criteria and, by extension, enhances the therapeutic effects of the law.

Our legal system is a powerful social force that shapes the life of everything it touches, ultimately reflecting the values of the society that empowers it. Presently, it is retributive in nature, systemically discriminatory in its disposition, and supported by robust provincial and federal infrastructure that is articulated by legislative mechanisms which are themselves controlled by policy and political discourse. The fast-approaching date of March 17, 2024 should therefore prompt us to urgently discuss the ramifications of the upcoming change in eligibility criteria.

If we fail to consider the antitherapeutic effects of incarceration, the acuity and prevalence of mental illness will be magnified, and the demand for MAiD in prisons will increase. If we fail to sufficiently consider the implications of this change in eligibility criteria, and the impact on those affected by it, what unintended consequences will be borne of that silence?

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Dylan McKibbon is a Privacy Officer with a background in philosophy and research ethics.